Venezuela's Petroleum Fiscal and Contractual Regime Flexibility
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International Association for Energy Economics | 41 Venezuela’s Petroleum Fiscal and Contractual Regime Flexibility Provisions 10 years of the 2001 Hydrocarbons Organic Law: A View of the Current State of Affairs By Carlos Bellorin* Background The year 2011 marks the 10th anniversary of the approval of the Venezuelan Hydrocarbons Organic Law (hereinafter HOL). This law, which was passed on 13 November 2001, and started on the path to full implementation in 20061, is the most influential hydrocarbons law since the 1943 Hydrocarbons Law, which in turn is considered a landmark in terms of legislation enacted during Venezuela’s modern times. Generally the law regulating hydrocarbons in Venezuela has been regarded as fundamental for the country’s interests, and the second only to the Constitution in terms of legislative significance2. The full implementation of HOL in 2007 occurred at the same time as the Law on the Effects of the Migration3 was passed. The Law on the Effects of the Migration is the final piece of legislation that ended the migration process or forced renegotiation of the contracts signed in the framework of the Oil Open- ing4 plan implemented during the 1990s. This article gives an account of the provisions that have been added or implemented during the last four years to make the conditions of the Venezuelan hydrocarbons fiscal and contractual regime more appealing to foreign investors5. Nowadays, the most pressing issue for Venezuelan hydrocarbons policy is to increase the country’s production levels, which have been decreasing in the last 10 years or so. The principal strategy to achieve this objective is to develop the huge heavy and extra-heavy oil reserves of the Orinoco Oil Belt, but this entails huge investments. This delvelopment requires that the heavy and extra-heavy crude pro- duced must be upgraded in a special facility in order to reduce their gravity and extract their high sulphur, coke and heavy metals content before being commercialised. These Orinoco Belt projects, as with any project involving the development of “primary activities”7, can only be carried out directly by the state, or through a joint venture, or Empresa Mixta (hereinafter EM), in which the state has control over decision making as holder of greater than 50% of the shares. This type of company is the only form of association through which foreign investors are allowed to participate in “primary activities”. The main constraints on such projects are the high costs involved8 combined with a “government take” of 94%9. The break-even price has been estimated at US$44 per barrel (for the WTI) for new proj- ects10. The size of the required investment, coupled with Venezuelan NOC PDVSA’s inability to carry- out these projects independently have led the Ministry of Energy and Petroleum to look for partnerships with foreign firms that can bring financing, technology and managerial skills to the country. To this end, the “government take” has had to be lowered and terms made more flexible11. As a result of the terms “sweetening” and after three years of negotiations, five new EMs were formed (seeTable 1). Below is a brief explanation of the provisions that have been added in order to give some flexibility to the Venezuelan hydrocarbons contractual and fiscal regime, which can be characterised as being typi- cally regressive. It is important to notice that the majority of the flexibility provisions are designed to apply during the early stages of the process, during the construction of the upgrading facilities that these projects require, where the majority of costs occur. The below commentaries are not intended to be an exhaustive list of the flexibility options included in Venezuela’s hydrocarbons fiscal and contractual re- gime, and instead we focus on the most important of the provisions. Royalty The HOL allows the royalty rate to be lowered from 30% to a floor of 20% in the case of mature fields or Orinoco Oil Belt extra-heavy oil fields. The partners in these projects must prove that the exploita- tion is not commercially viable under the “regular” (30%) rate. The provision also states that the regular rate can be entirely or partially reinstated “until reaching again 30%, when it is * Carlos Bellorin is an Oil and Gas Analyst at demonstrated that the commerciality of the deposit may be kept with said rein- IHS in London. The views expressed in this 17 statement.” article are the sole responsibility of the author A common provision included in almost all18 of the “new” Orinoco oil belt and do not necessarily represent the views of EM contracts19 is a stipulation that the Ministry of Energy and Petroleum “shall IHS or any of its employees, associated com- grant” the reduction of the royalty and extraction tax20 to the EM when certain panies or affiliates. See footnotes at end of text. 42 | Third Quarter 2011 Empresa Mixta Area Block(s) Estimated PDVSA Minority Shareholders14 Production (CVP13) (barrels Partici- p/d)12 pation PetroMacareo Junín 2 (247,77 Km2) 200,000 60% Petrovietnam 40% PetroUrica Junín 4 (324,42 Km2) 400,000 60% CNPC 40% PetroJunin15 Junín 5 (424,30 Km2) 240,000 60% ENI 40% PetroMiranda16 Junín 6 Consorcio Nacional Petrolero SRL (447,86 Km2) 450,000 60% (Russian companies consortium) 40% PetroCarabobo Carabobo 1 Repsol 11%; Petronas 11%; ONGC Videsh 11%; (382,86 Km2 400,000 60% Oil India Ltd. 3.5%; Indian Oil Corporation Ltd. 3.5% PetroIndependencia Carabobo 2,3 and 5 Chevron 34%; Mitsubishi Corp. 2.5; (554,54 Km2) 400,000 60% Inpex Corp.2.5%; Suelopetrol 1% Table 1 New Orinoco’s Oil Belt Empresas Mixtas basic information conditions are met. Simply, the reduction must be granted once the basic engineering studies21 of the project have been concluded and the revised cash flow projections have been adjusted (on the basis of the new engineering study results), which indicates that the investment cannot be recovered in a period equal to or shorter than seven years from the beginning of commercial production of upgraded crude oil. Certain EM contracts have been more specific in regards these conditions, for example PetroUrica and PetroMiranda conditions establish that the company’s activities will be oriented to reach an Internal Rate of Return (IRR) of 18% and 19%, respectively, that will allow for a seven-year investment payback period counted from the first commercial production of upgraded crude oil. Also, in both PetroUrica and PetroMiranda, conditions are established that the basic engineering stud- ies will be carried out using a Class 3 cost estimate22. The royalty and extraction tax are for temporary application, and apply upon the commencement of commercial production of upgraded crude oil and until such time as the EM has recovered its invest- ments. In this event, the royalty and oil extraction tax must be reinstated to their “regular” rates. Income Tax According to the Income Tax Law, the income tax rate for hydrocarbons activities is 50% and cannot be lowered. However, there is no obstacle in the Income Tax Law to reducing the taxable base. Accelerate Depreciation and Losses Carried Forward A provision which lowers the taxable income has been included under the conditions for those formed in connection to the Carabobo Bid Round23, namely PetroCarabobo and PetroIndependencia. Under this provision: • the EM investments in assets (CAPEX) for the development of hydrocarbon primary activities24 will be entirely deducted in the fiscal year that they are incurred; • the investments made in connection to hydrocarbons upgrading will be deducted during a ten-year period using the straight-line method; and • the net operating (OPEX) losses incurred by the EM in any fiscal year could be carried forward to be deducted over the subsequent ten fiscal years from the fiscal year in which they had been incurred25. Extra-heavy Oil Production and Refining Integrated Project Generally, all of the Orinoco Oil Belt EMs have been conceived as vertically integrated production and upgrading projects paying royalties and taxes as single business entities. However, a new busi- ness model called Extra-heavy Oil Production and Refining Integrated Project (hereinafter integrated project) has been introduced for the development of the Junín 5 block. This business model establishes that two EMs will be formed: one for the production of extra-heavy oil and the other for the refining of this production. These two EMs have been called PetroJunin and PetroBicentenario, respectively. This International Association for Energy Economics | 43 project, which will be carried-out by PDVSA and ENI subsidiaries, bears comparison with a horizontally integrated business model, and is the first to be implemented in Venezuela breaking with the traditional model. The integrated project’s raison d’ etre is to benefit from the provision of the Income Tax Law Article 11 (second paragraph), which establishes that companies exclusively carrying-out hydrocarbons refining activities or the upgrading of heavy and extra-heavy oil are exempted from the 50% rate of petroleum income tax, instead being liable to the non-petroleum rate of 34%, making Empresa Mixta Area Block(s) Recoverable Participation both projects more tax and cost efficient. Production Bonus In consequence, the “production” EM will Reserves (US$/1,000,000) be liable to pay an income tax rate of 50%, (Mils Barrels) while the “refining” EM pays 34%, although (20%*Orignal both belong to a comprehensive integrated Oil in Place) project with the same partners. PetroMacareo Junín 2 (247,77 Km2) 1460 584 Participation Bonus PetroUrica Junín 4 According to the provisions of the “new” (324,42 Km2) 2250 900 Orinoco Oil Belt EMs, the participation bo- 15 PetroJunin Junín 5 26 nus is a payment that the foreign partners (424,30 Km2) 1615 646 must pay to the state for the right to partici- PetroMiranda16 Junín 6 pate in the project.